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Click here for the full text of this decision FACTS:Defendant Dunyell Wright founded MFG Financial Services, a mortgage brokerage, in November 2001. From Dec. 10, 2002, through January 2003, Wright worked with David Hale to fraudulently secure a mortgage in Hale’s name, the purchased house to be used by Hale and his partner K&B One Stop Real Estate Services as part of a business venture. As part of the “scheme,” Wright misstated Hale’s creditworthiness on applications to WMC Mortgage Corp., the eventual lender; secretly used his own funds to pay the closing costs; and used a cashier’s check from his account to pay the down payment, then submitted to WMC a copy of the check that had Hale’s name on it to imply that Hale had paid the down payment. Wright’s goal was to ensure that Hale was approved with a good rate, thus increasing Wright’s commission and possibly garnering him a side payment. Chase Home Finance eventually purchased the mortgage from WMC and lost $104,000 on it. As part of another “scheme,” Damon Tippie sought to purchase a house, which K&B would then turn into an assisted living center, after which K&B would pay Tippie a salary and pay Tippie’s mortgage for six months. Tippie, who knew he didn’t have the means to get the required $750,000 mortgage, was told by K&B to work with Wright. Wright again performed his “sleight of hand.” The court said that Chase Home Finance eventually purchased this mortgage as well, suffering a $149,727 loss. Following Wright’s indictment, FBI Special Agent Frank Super found Wright at an apartment in Grand Prairie. After knocking on the door, Wright appeared and initially denied his identity. After Wright admitted his identity, Super advised him of the warrant for his arrest. While standing in front of the door, Super told Wright to get dressed, because he was going to be arrested and transported to jail in Forth Worth. Wright briefly argued with Super, then abruptly closed and locked the door. Super called local police, who arrived 15 minutes later and knocked on the door. They suspected Wright was inside because they heard noises and saw the blinds move. Sometime later, the police forcefully entered the house and determined that Wright had earlier fled out the back door. Wright remained a fugitive until his capture in Irving six weeks later. The government charged Wright with three counts of bank fraud, one count of false use of a Social Security number and one count of wire fraud. Wright eventually pleaded guilty to the last count without a plea agreement. The presentence report concluded that the loss amount was $270,446, representing the two losses to Chase Home Finance and about $16,755 of losses to other banks alleged in counts one through four. The government then added two levels for obstruction of justice based on Wright’s flight, two levels for abuse of trust and two levels for use of sophisticated means. After deducting three levels for acceptance of responsibility, the sentencing range was 70 months to 87 months. Wright objected to all three enhancements and the inclusion of the Tippie loss and the $16,755 in the loss amount. In response, the government agreed that the obstruction of justice enhancement should not apply but defended the other two. It conceded that the $16,755 should not be included in the loss amount but defended inclusion of the Tippie loss. The amended PSR reaffirmed all three enhancements and inclusion of the Tippie loss. At sentencing, the district court applied all three enhancements and found the loss to include the Tippie loss but apparently not the $16,755 loss. After sustaining Wright’s objection to the calculation of his criminal history points, the final range was 46 to 57 months. The court gave Wright 57 months and ordered him to pay $270,466 in restitution, a figure which included the $16,755. Wright appealed application of the three enhancements, the inclusion of the Tippie loss in calculating the offense level, and the inclusion of the Tippie and $16,755 losses in the order of restitution. HOLDING:Vacated and remanded. U.S. Sentencing Guideline �3C1.1, the court stated, provides a two-level increase for obstruction of justice. Application note five of �3C1.1 lists conduct for which the increase doesn’t apply, including “avoiding or fleeing from arrest.” Note four, however, lists conduct for which the increase does apply, including “escaping or attempting to escape from custody.” The district court found that Wright qualified for enhancement under �3C1.1. The critical inquiry, the court stated, is whether the defendant escaped from custody or was avoiding custody, regardless of his state of arrest. Wright was not in custody when he fled, the court stated. Thus, the court ordered remand of the case for resentencing. Moving on to the other issues, the court noted that �3B1.3 provided a two-level increase for abuse of position of trust. Section 3B1.3 provides a two-level increase if “a defendant abused a position of public or private trust, or used a special skill, in a manner that significantly facilitated the commission or concealment of the offense.” The court found that the district court did not clearly err in concluding that Wright abused his position of trust as a mortgage broker. Next, the court analyzed the enhancement under �2B1.3, which provides a two-level increase for use of sophisticated means in certain crimes. The court found no error in the finding that Wright used sophisticated means. Depositing a check from someone else into your account, the court stated, and then using that money to purchase a cashier’s check in someone else’s name, are sophisticated means, at least as part of a scheme to defraud a mortgage broker. The court did not find clear error in the district court’s decision to include the loss from both the scheme of conviction and loss from the Tippie scheme in sentencing Wright. Finally, the court noted that the government conceded that the $16,755 order of restitution was error, because it was for losses unconnected to the scheme of conviction. The district court on remand should remove that amount from the order of restitution, the court stated. OPINION:Higginbotham, J.; Higginbotham, Davis and Wiener, JJ.

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